Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship
90 Pages Posted: 10 Oct 2014 Last revised: 13 Nov 2014
Date Written: October 1, 2014
Ever since H.L.A. Hart introduced the concept of the “internal point of view” in the The Concept of Law (1961), the temptation to distinguish sharply between two “perspectives” on law – one internal, the other, external – has proven irresistible to legal scholars of various kinds. In the 1980s, Ronald Dworkin attacked the substance and the method of Hart’s philosophy of law but followed Hart in emphasizing the importance of an “internal point of view,” though he used the term in a slightly different way than had Hart. Since then, various versions of an internal/external distinction – whether as applied to points of view, attitudes, explanations, or forms of scholarship – have proliferated throughout the landscape of legal theory. One finds it popping up in debates within substantive areas of law, including tort law, criminal law, and constitutional law, as well as in methodological disputes over how to properly study judicial behavior or how to understand the relationship between law and other academic disciplines. The current popularity of the distinction prompts a number of questions. First and most obviously, why is it so popular? The distinction seems like a natural one to draw, but it is of relatively recent origin, so why did it catch on when it did? Second, given the diversity of uses to which it has been put, is there only one distinction, or do several go under the same name? If there are many distinctions, do they have anything in common? Finally, what function does the distinction (or distinctions) serve? Is that function a useful one for legal theory and practice? This article offers some answers to these questions. It begins by tracing the distinction back to its roots in the jurisprudential writings of H.L.A. Hart and Ronald Dworkin. There one finds three distinct understandings of an “internal point of view,” each with its own contrasting “external” perspective (or perspectives). The article then shows how subsequent scholars have broadened and modified each of these versions of the distinction and made use of them in different doctrinal and methodological debates. It then argues that all versions of the distinction, but particularly the two methodological versions of it, function to stifle scholarly debate, rather than to stimulate it, and to obscure important questions rather than to clarify them. The article concludes by suggesting that even if the distinction once served a useful role in legal theory, it no longer does and should therefore be retired.
Keywords: Hart, Dworkin, internal, external, methodology, legal theory, legal history, legal realism, jurisprudence, public law, tort law, excuses, precedent, judicial behavior, critical legal studies
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